Tommy Broughan (Dublin North East, Labour)
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Question 295: To ask the Minister for Jobs, Enterprise and Innovation if he will report on the proposed transposition of the Anti-Counterfeiting Trade Agreement, ACTA, into Irish law; if this legislation will be introduced through a statutory instrument or primary legislation; the consultation that has taken place with stakeholders before the proposed introduction of this legislation; and if he will make a statement on the matter. [5126/12]

Seán Sherlock (Cork East, Labour)
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The Anti-Counterfeiting Trade Agreement, ACTA, to which the Deputy is referring, is an international legal framework to more effectively combat the proliferation of counterfeit and pirated goods. As you are aware, counterfeiting and piracy are now serious problems which undermine legitimate trade and the sustainable development of the world economy. The growth of this illegal trade has led the ACTA participants to agree to develop an instrument that will strengthen international co-operation regarding this serious development.

ACTA is an agreement about the enforcement of Intellectual Property Rights. It does not oblige any of its EU signatories to create new substantive rights or to change existing ones. It only commits its EU signatories to ensure that the right holders can fully assert their rights if, when and where they exist. The ACTA provisions are compatible with existing EU law. Therefore, it will not require any revisions or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law.

My Department has consulted the relevant Departments affected by ACTA and the Office of the Attorney General to ascertain compliance of Irish legislation with the provisions of ACTA. It is not expected that there will be a need to amend current Irish legislation. However, before ratifying ACTA, my Department will again confirm with all relevant Departments of State and with the Office of the Attorney General, that all legislative and administrative requirements are in place to enable Ireland to fulfil its obligations under the Agreement.

Under the terms of the Treaty on the Functioning of the EU, the EU and its Member States cannot conclude the Agreement without the consent of the European Parliament. The Parliament's International Trade Committee is reviewing the Agreement, and is expected to make a decision on whether to approve it in April or May. A final plenary vote is tentatively scheduled for June.

Stephen Donnelly (Wicklow, Independent)
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Question 296: To ask the Minister for Jobs, Enterprise and Innovation if, with regard to the legislative response to the High Court judgment in the case of EMI and Others [i]v.[/i] UPC, his intention to legislate for this by statutory instrument; and how this is consistent with the statement in the programme for Government that the situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument. [5283/12]

Stephen Donnelly (Wicklow, Independent)
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Question 297: To ask the Minister for Jobs, Enterprise and Innovation, with regard to the legislative response to the High Court judgment in the case of EMI and Others [i]v.[/i] UPC, if he intends to legislate for this by statutory instrument, and how this is consistent with the statement in the programme for Government that the situation can no longer be tolerated when Irish Ministers enact EU legislation by statutory instrument. [5286/12]

Seán Sherlock (Cork East, Labour)
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I propose to take Questions Nos. 296 and 297 together.

As the Deputy is aware the judgment of the High Court in the case of EMI & ors v UPC held that by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and that Ireland did not comply with EU law. As you will appreciate, non-compliance with EU law is a very serious matter. Following a public consultation process which was conducted by my Department, and taking all matters into account, including the opinion of the Attorney General, it was felt necessary that there should be a restatement of the situation which was considered to pertain in Irish law in relation to injunctions against intermediaries prior to the judgment in the EMI & ors v UPC case. This is necessary to ensure Ireland's compliance with the EU Copyright Directive. It is for this reason that a legislative instrument is proposed.

I wish to state that no policy change is proposed in the Statutory Instrument as it had been the intention of the Copyright and Related Rights Act to provide such civil remedies and it had been assumed that such was the case up to the High Court judgment in EMI Ireland & others versus UPC. Accordingly, the wording of the proposed Statutory Instrument has been framed in a manner which merely gives effect to the wording of the EU Copyright Directive (i.e. Article 8(3) of 2001/29/EC) rather than extending its scope beyond that of intermediaries.

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but rather it seeks to merely restate the position that was thought to exist in the Copyright legislation prior to Justice Charleton's judgment here and in all EU Member States. Accordingly, the introduction of this measure by way of Statutory Instrument is not inconsistent with the legislative policy outlined in the Programme for Government.

Stephen Donnelly (Wicklow, Independent)
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Question 298: To ask the Minister for Jobs, Enterprise and Innovation his plans to introduce a statutory instrument in response to the High Court judgment in the case of EMI and Others [i]v.[/i] UPC; the date of same; and how he intends to respond to this judgment. [5351/12]

Seán Sherlock (Cork East, Labour)
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Some background information may be useful in appreciating the context of the proposed legislative instrument. The EU provided in the e-Commerce Directive 2000/31/EC for exemptions from liability for copyright infringement for intermediary service providers in cases of mere conduit, caching and hosting, upon certain conditions. This was to provide a framework for the development of e-commerce and telecommunication industries. Although such providers are thus free from civil and criminal liability in certain circumstances, the EU Copyright Directive 2001/29/EC (as allowed for in the e-Commerce Directive) provides that rights holders must be in a position to apply for injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right.

The High Court judgment (in the case of EMI & ors v UPC) held that by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and that Ireland did not comply with EU law. As you will appreciate, non-compliance with EU law is a very serious matter. My Department had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. For the avoidance of doubt, it has decided to introduce a Statutory Instrument to restate the position that was considered to pertain prior to this judgment.

A High Court judgment has held that, by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and suggested that Ireland did not comply with EU law. As you will appreciate, for a member of the European Union, non-compliance with EU law is a serious matter. For the avoidance of doubt, it has been decided to introduce a Statutory Instrument to restate the position that was considered to pertain prior to this judgment.

It is expected that this measure will be introduced shortly.

Stephen Donnelly (Wicklow, Independent)
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Question 299: To ask the Minister for Jobs, Enterprise and Innovation if he will confirm that, in developing his legislative response to the High Court judgment in the case of EMI and Others [i]v.[/i] UPC, he has consulted with industry stakeholders; if so, with whom has he consulted, and via what process; and if not, if he will explain the reason. [5353/12]

Seán Sherlock (Cork East, Labour)
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An issue arose following a High Court judgment in October 2010 where it was stated that Ireland was not in compliance with its EU obligations under the Copyright Directive 2001/29/EC. It was held that the court could not grant an injunction against an intermediary in relation to internet transient communications. Until this judgment, it had been considered that Ireland was fully compliant with Art 8(3) of the relevant directive and that injunctions were available both under Section 40(4) of the Copyright and Related Rights Act 2000 and by reason of the inherent power of the court in relation to equitable remedies.

Following consultation with the Office of the Attorney General it was considered that as the High Court decision was not appealed, it was necessary for Ireland, for the avoidance of doubt, to restate its previous understanding of its compliance with EU law. A public consultation in relation to the content of a draft legislative measure in this regard was held. This received wide publicity at the time. In addition to a web-based consultation and liaising with the Department of Communications, Energy and Natural Resources, the consultation document was forwarded to bodies such as the Assoc of Trademark and Patent Attorneys, BT Communications Ireland Ltd, Consumers Association of Ireland, Digital Rights Ireland, Eircom, EMI Music Ireland Ltd, Enterprise Ireland, Google, Hinkson Solicitors, IBEC, IDA, IMIR, International Software Federation of Europe, Internet Service Provides Association of Ireland, Irish Copyright Licensing Agency, IRMA, Law Society of Ireland, Microsoft Ireland, O2, UPC, Vodafone, and X-tra Vision. Following the consultation, I had meetings with representatives from many of the above bodies including, ISPs, rightsholders and consumers.

Stephen Donnelly (Wicklow, Independent)
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Question 300: To ask the Minister for Jobs, Enterprise and Innovation, with regard to the legislative response to the High Court judgment in the case of EMI and Others [i]v[/i]. UPC, if any analysis has been made of the potential impact of legislative changes on Irish companies and international companies here; if so, the conclusions of this analysis; and if he will release same. [5354/12]

Seán Sherlock (Cork East, Labour)
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As the Deputy is aware the judgment of the High Court in the case of EMI & ors v UPC held that by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and that Ireland did not comply with EU law. As you will appreciate, non-compliance with EU law is a very serious matter. A public consultation process seeking comments from interested parties on the content of a proposed legislative amendment to the Copyright and Related Rights Act, by means of a Statutory Instrument, was conducted over last June and July. More than 50 submissions were received and these submissions were afforded careful consideration.

In addition to liaising with the Department of Communications, Energy and Natural Resources, the consultation document was forwarded to bodies such as the Assoc of Trademark and Patent Attorneys, BT Communications Ireland Ltd, Consumers Association of Ireland, Digital Rights Ireland, Eircom, EMI Music Ireland Ltd, Enterprise Ireland, Google, Hinkson Solicitors, IBEC, IDA, IMIR, International Software Federation of Europe, Internet Service Provides Association of Ireland, Irish Copyright Licensing Agency, IRMA, Law Society of Ireland, Microsoft Ireland, O2, UPC, Vodafone, and X-tra Vision. Following the consultation, I had meetings with representatives from many of the above bodies including, ISPs, rightsholders and consumers. The submissions and input from all those concerned has been carefully considered and has proved very valuable in providing a comprehensive understanding of the differing views on the many issues involved including the relevant issues raised from the perspective of companies operating within this jurisdiction.

It is important to note that no policy change is proposed in the Statutory Instrument as it had been the intention of the Copyright and Related Rights Act to provide such civil remedies and it had been assumed that such was the case up to the High Court judgment in EMI Ireland & others versus UPC. The legislation proposed is a restatement of the situation that was thought to pertain prior to this judgment.

Going back to 22 December, 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to "ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right". Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.

Stephen Donnelly (Wicklow, Independent)
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Question 301: To ask the Minister for Jobs, Enterprise and Innovation, with regard to the legislative response to the High Court judgment in the case of EMI and Others [i]v.[/i] UPC, if he will give a commitment that any legislation will provide a right for sites or Internet providers whose sites are to be blocked under the legislation to have the right to appeal that decision. [5355/12]

Seán Sherlock (Cork East, Labour)
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The judgment of the High Court in the case of EMI & ors v UPC held that by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and that Ireland did not comply with EU law. As you will appreciate, non-compliance with EU law is a very serious matter. Following a public consultation process which was conducted by my Department, and taking all matters into account, including the opinion of the Attorney General, it was felt necessary that there should be a restatement of the situation which was considered to pertain in Irish law in relation to injunctions against intermediaries prior to the judgment in the EMI & ors v UPC case. This is necessary to ensure Ireland's compliance with the EU Copyright Directive.

This Directive and the Court of Justice of the European Union require that all remedies must be proportionate and that the right of freedom of expression and the right to conduct a business must be balanced with the right to intellectual property in considering the granting of an injunction. The Deputy will be aware that since the adoption of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union must apply when implementing EU law. This means that in considering the grant of an injunction, a court must balance the intellectual property right with the other fundamental rights guaranteed by the Charter which include: Protection of personal data, Freedom of expression and Information, Freedom to conduct a business and the right to property.

I wish to inform the Deputy that the proposed Statutory Instrument provides that the owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC applies. The right of appeal in respect of any injunction granted in accordance with the provisions of the proposed Statutory Instrument would lie to the Supreme Court.